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Free-market economist Professor William F. Shughart II attempts to defend the need for IP in "Ideas Need Protection," The Baltimore Sun (Dec. 21, 2009) (previously published in the Christian Science Monitor). Subtitled "Abolishing Intellectual-property, Patents Would Hurt Innovation: A Middle Ground Is Needed," the piece suffers from flaws found in others defenses of intellectual monopoly and pattern privilege. For example, Professor Shughart writes:

Article I, Section 8, of the Constitution explicitly delegates to Congress authority "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Developing and successfully commercializing new products and technologies typically requires large investments of time and treasure. Most research and development (R&D) investments end in failure.

Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea--and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.

The word "therefor" is unwarranted; this is a non sequitur. Later on in the piece, he writes:

Incentives matter. Although there may be a passionate few who don't require payment for contributing to the common pool of knowledge, technological advancement will be much more rapid if an explicit economic payoff is available.

Much more rapid--? How much more? Who knows? The IP advocates don't. So how do they know it justifies the cost?

I found this to be an refreshing admission of the stifling effect mercantilist intellectual monopoly has on the spread of ideas:

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse ...

Unfortunately, he supports these laws anyway. Shughart also candidly and explicitly admits the monopoly character of of patent and copyright:

Granting a temporary monopoly to the rare breakthrough is necessary...

(Some IP advocates get very irked when patents are called monopolies. For example (as noted in Are Patents "Monopolies"?), patent attorney Dale Halling, in a piece entitled "The Myth that Patents are a Monopoly," writes, "People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda." But it is common for IP advocates to acknowledge this. For example, Richard Epstein writes "Patented goods are subject to a lawful monopoly created by the state in order to induce their creation ... The legal monopoly granted by the patent is the only mechanism that allows the producer to recover those fixed costs...." And Objectivist IP attorney Murray Franck has argued that "if the creator's rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he would otherwise earn." See also my comments here, noting that even the Supreme Court and other federal courts slip up and admit the monopoly character of IP on on a regular basis.)

Consider this argument our author makes:

It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.

Can Shughart really be arguing that we need copyright, for otherwise another potential Charles Dickens might drop dead early? (This reminded me of a bizarre argument made by patent attorney Gene Quin, noted in this post. In an online discussion, IP opponent David Koepsell had mentioned "that in the 19th and early 20th centuries, two of the most innovative countries on earth (The Netherlands and Switzerland) had no patent systems at all." In response, Quinn says: "Thank goodness the Swiss did have a Patent Office. That is where Albert Einstein worked and during his time as a patent examiner came up with his theory of relativity." So ... we need a state-granted monopoly system ... so that Albert Einstein could have had a job in Switzerland. What does one even say in response to such an "argument"?)

Professor Shughart continues:

The hard questions are: What kinds of ideas should be eligible for patent and copyright protection, and how long should that protection last?"

What's needed is a middle ground. Even if we can all agree that intellectual property is an important social commodity, one size doesn't fit all in the modern Digital Age.

While a 20-year monopoly may be appropriate for new drugs, it may not be appropriate for software, a new electronic game or, as Justice Sonia Sotomayor seemed to suggest during questioning in the Bilski case, a new "speed-dating service."

A 20-year patent monopoly on a method for speed-dating may not be appropriate?! How would Justice Sotomayor know, really?

As for there being "hard questions"--who can answer them? And if "we need a middle ground"--even though we have no evidence to know where the "optimum" is--how can we achieve this? Who can do it? Shughart's answer: Congress and the courts:

Rather than abolishing patent and copyright protection for some categories of intellectual property, Congress and the courts should consider varying the length for which exclusive monopoly privileges are granted, depending on the expected commercial vitality of the creative work. [emphasis added]

The state is neither benevolent nor competent (well, they are good at two things: destruction, and propaganda). There is no reason to believe Congress or the courts want, or are equipped, to find the "right" answers to such questions. (As J.H. Huebert observes about government courts: "In general, judges and those who appoint them have no reason to want to limit government. … Have not judges been responsible for some of the most outrageous expansions of government power? And, after all, are judges not a product of the same political system that gives us legislators and presidents? What president would appoint judges who would tell him he cannot do anything he wants? What Senators would confirm a judicial candidate who tells them that everything they have ever done in office is unconstitutional? The whole enterprise of libertarian constitutional theory ignores all we have learned from public choice economics about the incentives of government actors.") There is no reason to trust state employees to determine the optimum length of patent and copyright monopolies for various types of inventions and artistic works, much less by using "the expected commercial vitality of the creative work" as a test.

***

Appendix:

N.B: My original draft was done in very sarcastic style. At the urging of some friends, I ultimately decided to rewrite it in more standard, serious, respectful, straight style. But for those who like a bit of humor, here's the original sarcastic post:

Shughart's IP Parody

In "Ideas Need Protection," subtitled "Abolishing Intellectual-property, Patents Would Hurt Innovation: A Middle Ground Is Needed," free-market economist William F. Shughart II has penned a wickedly funny parody of typical arguments in favor of IP. Brilliantly, he somehow managed to slip it by the editors of The Baltimore Sun as well the Christian Science Monitor, where it was first published, without either publication realizing it was a parody.

Article I, Section 8, of the Constitution explicitly delegates to Congress authority "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Developing and successfully commercializing new products and technologies typically requires large investments of time and treasure. Most research and development (R&D) investments end in failure.

Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea--and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.

I like this. First, he demonstrates how pro-patent law arguments rest on the assumption that the patent system generates overall wealth--that its benefits are greater than its costs--without ever making this case. Instead, they point to ways that the patent system benefits some people, and never bother to even try to tally up the costs to make sure it's a net positive. In other words, they don't even take their own justifications seriously. The point is reinforced by the totally unwarranted word "therefore" inserted above, in a blatant example of non sequitur. Revisiting this theme later on in the piece, our author writes:

Incentives matter. Although there may be a passionate few who don't require payment for contributing to the common pool of knowledge, technological advancement will be much more rapid if an explicit economic payoff is available.

Much more rapid--? How much more? Who knows! The IP advocates don't! "What are they jabbering about? How do they know?", Shughart seems to be saying, if you read between the lines.

Professor Shughart has no doubt noted that although it gives IP advocates a case of the vapors if you call IP a "monopoly," too many hapless IP advocates just seem unable resist admitting this. Thus, he writes:

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse ... Granting a temporary monopoly to the rare breakthrough is necessary...

This is just a perfect impression of the typical blunder made by patent and copyright proponents when they inadvertently acknowledge the stifling effect mercantilist intellectual monopoly has on the spread of ideas. This is a very common faux pas of the monopolists, who forget to hide the fact that IP is, in fact, a monopoly. When IP'ers stray from the reservation like this, it really irks the organized pro-patent forces. For example (as noted in Are Patents "Monopolies"?), patent attorney Dale Halling, in a piece entitled "The Myth that Patents are a Monopoly," writes,

People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.

But, as Shughart demonstrates, all too often the pro-monopoly forces can't help themselves and inadvertently let the truth tumble out of their mouths. For example, we have pro-patent Richard Epstein (see Epstein and Patents), noting that

Patented goods are subject to a lawful monopoly created by the state in order to induce their creation ... The legal monopoly granted by the patent is the only mechanism that allows the producer to recover those fixed costs....

And here we have Objectivist IP attorney Murray Franck arguing that "if the creator's rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he would otherwise earn."

And see my comments here, noting that even the Supreme Court and other federal courts slip up and admit the monopoly character of IP on on a regular basis:

"Section 154 and related provisions [e.g. Sec. 271] obviously are intended to grant a patentee a monopoly only over the United States market...."; "Congress made the policy choice that the "carrot" of an exclusive market for the patented goods would encourage patentees to commercialize the protected inventions so that the public would enjoy the benefits of the new technology during the patent term in exchange for granting a limited patent monopoly. In other words, the public expected benefits during 'the embarrassment of an exclusive patent as Jefferson put it.'"; "We hold that the disputed royalties provisions do not inappropriately extend the patent monopoly to unpatented parts of the patented system"; "A patentee, in demanding and receiving full compensation for the wrongful use of his invention in devices made and sold by a manufacturer adopts the sales as though made by himself, and therefore, necessarily licenses the use of the devices, and frees them from the monopoly of the patent."; "The Florida statute is aimed directly at the promotion of intellectual creation by substantially restricting the public's ability to exploit ideas that the patent system mandates shall be free for all to use. Like the interpretation of Illinois unfair competition law in Sears and Compco, the Florida statute represents a break with the tradition of peaceful coexistence between state market regulation and federal patent policy. The Florida law substantially restricts the public's ability to exploit an unpatented design in general circulation, raising the specter of state-created monopolies in a host of useful shapes and processes for which patent protection has been denied or is otherwise unobtainable. It thus enters a field of regulation which the patent laws have reserved to Congress. The patent statute's careful balance between public right and private monopoly to promote certain creative activity is a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it."; "Whatever weight is attached to the value of encouraging disclosure and of inhibiting secrecy, we believe a more compelling consideration is that a process patent in the chemical field, which has not been developed and pointed to the degree of specific utility, creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development, without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point -- where specific benefit exists in currently available form - there is insufficient justification for permitting an applicant to engross what may prove to be a broad field."; "I agree with the Court that the question before us is a narrow one. Neither the future of scientific research, nor even the ability of respondent Chakrabarty to reap some monopoly profits from his pioneering work, is at stake. Patents on the processes by which he has produced and employed the new living organism are not contested. The only question we need decide is whether Congress, exercising its authority under Art. I, 8, of the Constitution, intended that he be able to secure a monopoly on the living organism itself, no matter how produced or how used."

Anyway, Shughart must have noticed this habit of inadvertently admitting the true nature of the patent grant--a habit that makes fellow IP advocates grimace and exclaim, "Damn! He admitted it too!"--and imitated it here to perfection. "Those crazy patent guys," Shughart seems to be saying, with a sly smile and a twinkle in his eye, "can't get their story straight."

Here's another patentism Professor Shughart tackles. Sometimes IP advocates trot out the most ridiculous arguments when they have no other response available, such as this bizarre argument by patent attorney Gene Quinn (noted in this post). In an online discussion, IP opponent David Koepsell had mentioned "that in the 19th and early 20th centuries, two of the most innovative countries on earth (The Netherlands and Switzerland) had no patent systems at all." In response, Quinn says:

Thank goodness the Swiss did have a Patent Office. That is where Albert Einstein worked and during his time as a patent examiner came up with his theory of relativity.

You got that? We need a state-granted monopoly system ... so that Albert Einstein could have had a job in Switzerland. I mean, what does one even say in response to this, which is not even a pretense at serious argument? Our observant author must have noticed this and other such arguments, which he is clearly mocking here:

It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.

The hard questions are: What kinds of ideas should be eligible for patent and copyright protection, and how long should that protection last?"

What's needed is a middle ground. Even if we can all agree that intellectual property is an important social commodity, one size doesn't fit all in the modern Digital Age.

While a 20-year monopoly may be appropriate for new drugs, it may not be appropriate for software, a new electronic game or, as Justice Sonia Sotomayor seemed to suggest during questioning in the Bilski case, a new "speed-dating service."

The IP advocate is here portrayed as unable to even definitively object to a 20-year patent monopoly on a method for speed-dating--"it may not be appropriate"! And the part about "these are hard questions" ... who can answer them, oh who?-- and "we need a middle ground"--even though we have no evidence to know where the "optimum" is. But wait for it--Congress might know! --

Rather than abolishing patent and copyright protection for some categories of intellectual property, Congress and the courts should consider varying the length for which exclusive monopoly privileges are granted, depending on the expected commercial vitality of the creative work. [emphasis added]

Shughart is so right here: the proponents of intellectual monopoly, like all interventionists, do indeed have an utterly misplaced, naive faith in the state's benevolence and competence. Why, let's have Congress should figure this out! Oh, I'm in stitches. And the courts--yeahhhhh, they'll do a great job--the same courts witheringly described here by J.H. Huebert:

In general, judges and those who appoint them have no reason to want to limit government. … Have not judges been responsible for some of the most outrageous expansions of government power? And, after all, are judges not a product of the same political system that gives us legislators and presidents? What president would appoint judges who would tell him he cannot do anything he wants? What Senators would confirm a judicial candidate who tells them that everything they have ever done in office is unconstitutional? The whole enterprise of libertarian constitutional theory ignores all we have learned from public choice economics about the incentives of government actors.

I will close by noting my favorite line of this sparklingly humorous essay: to determine the right length of patent and copyright monopolies for various types of inventions and artistic works, Congress should be not only trusted to want to do this, but should use "the expected commercial vitality of the creative work" as the test! Oh, man. I'm crying.

Maybe I am having a bad hair day today. It bothers me when so-called free-market advocates profess a need for "protection". They also seem to speak eloquently of the holiness of contracts. Surreal Contracts

The problem? Its all smoke and mirrors. The arguments of many who profess to be "free-market" advocates seems to boil down to the one essential point that the State is obligated to protect their business model through legislation, regulation, and the court system. Hypocritically, in the name of the free-market, the supposed free-market advocates claim that those who buy the products (IP) are not entitled to any State protection. They are simply left to drown.

If Professor William F. Shughart II really is a true "free-market" advocate, I fail to see how he can defend the position of the "evil" State protecting so-called intellectual property.

Crosbie, I wish the Constitution were libertarian, but wishing does not make it so. Some activist and California new age types like to delude themselves, but I do not. The Constitution is a terrible document, not libertarian. That's just the way it is. It allows taxation, conscription, and IP law. Don't blame the messenger.

2. What came before the Constitution was unrepresentative, often violent rule by distant British overlords, followed by insurrection and war. Prior to 1776, the typical person anywhere on the world was a serf at best and usually a slave. With the American and French revolutions around that time, the freedoms of many people increased. The widespread abolition of slavery by 1900 improved things further. Even granting your (dubious) supposition that no government at all would be better still, you must admit that the average person has historically been much better off in a constitutional democracy than they have been under a monarchy, or a military dictatorship, or any of the other systems of government to have been observed thus far.

"What came before the Constitution was unrepresentative, often violent rule by distant British overlords, followed by insurrection and war. Prior to 1776, the typical person anywhere on the world was a serf at best and usually a slave."

You are talking pre-1776. Between 1776 and 1789 the US government was under the Articles of Confederation. The British overlords had been defeated. There was representation. You said the Constitution was an improvement over what was before. What was before was the Articles of Confederation. Now, if you had said the Articles were an improvement over the British rule before, that is more arguable.

I DID say they were an improvement over the British rule before. More generally, that democracies have been an improvement over monarchies and dictatorships. I find it difficult to believe you disagree with that, even if we disagree on whether anarchy would be better still.

Nobody: "I DID say they were an improvement over the British rule before. More generally, that democracies have been an improvement over monarchies and dictatorships. I find it difficult to believe you disagree with that, even if we disagree on whether anarchy would be better still. "

You said the Constitution was better than what we had before--what we had before was the Articles. It was not better than that. If you meant the Constitution was better than British rule, that's more debatable. Also debatable is the contention that the move from monarchy to democracy was progress (monarchy <> dictatorship).

The Articles of Confederation has always been an interesting instrument, and its being largely ignored in discussions about Post-1776 political history is disappointing. I wonder how many people have even heard of Article XI?

To the point it was more friendly to liberty, I have to wonder if this is accurate since it essentially left governance within each of the 13 colonies in the hands of their respective legislatures. The document did place significant constraints on federal power, but left each colony relatively free reign to do as it wished. In my admittedly crude vernacular, it sanctioned 13 sovereign "nations" (14 if Canada decided to enter the mix), and in my view did little to establish meaningful groundrules by which the 13/14 could work with a common voice vis a vis foreign governments.

Frankly, I believe that whatever its faults, the US Constitution was much more aligned with a true confederation allocating power between a federal entity and each colony. To my way of thinking, flaws in the US Constitution have less to do with its provisions, and more to do with the incremental creep that has followed as the federal government has moved from its original limited role to one where now in many respects it more closely represents the very system of government it was meant to displace. I daresay that even Alexander Hamilton, perhaps the strongest proponent of significant federal power, would be amazed and disgusted as to the extent federal power has expanded.

It's worth pointing out here that
Article 1, section 8 of the U.S. Constitution grants Congress a monopoly of a wide range of actions, and gives it the power to levy taxes, which is the root of the State's power. No wonder Mark Twain called it America's only native criminal class.
So Art. 1, section 8 is the monopoly clause. It contains the progress clause, which is about patents and copyrights.
As for Al Hamilton, a year or so ago The Economist claimed that he was the creator of the American state. A big government man and advocate of taxation and war, he was the most evil American in history IMO, even worse than the Body Count winner Lincoln. He wanted the federal government to assume the State's debts, which was probably the original American bailout. No Hamilton, no Big State.

On more than one occasion I have passed by the site where he expired, at 80 1/2 Jane Street in Manhattan (there's a plaque there), knelt down, kissed the sidewalk, and paid homage to the memory of Burr. It's a site every libertarian should visit.

Aren't you forgetting something when you denigrate Lincoln for a high "body count" and call him "evil"? Namely, that the Civil War led to the abolishment of slavery. For one who is purportedly a libertarian to effectively say that slavekeeping is preferable to a war that frees slaves, or to a centralized state outlawing slavekeeping, or to both, seems more than a little hypocritical.

I knew someone would make this claim, which is belied by two inconvenient facts: (1) Lincoln fought the war not to free the slaves but to preserve the union; the abolition of slavery was a happy and unintended consequence of the war. And (2) slavery would have ended at a much lower cost in deaths, injuries, and property destruction, albeit at a later date had Lincoln's Little War (that's the title of a book) not been fought. See the recent book by Jim Powell Greatest Emancipations: How the West Abolished Slavery; and the series of arguments beginning with my comments starting Feb. 4, 2008, posted at the History News Network,
James Stirling on the Economic Contradictions of Slavery-Based Agriculture, and the other commenters at this thread, including Jim Powell.

Btw, the libertarian Jeff Hummel votes Lincoln as the worst American prexie mainly for his body count. I go with Jim Powell's pick of Wilson because of the Fed, the income tax, the estate tax, WW I, the Alien and Sedition Act, his throwing a bunch of innocent people into the slammer (including Gene Debs) etc., etc. Woodrow's state institution building had more profound consequences for our current corrupt regime set up.

And what, pray tell, was wrong with preserving the union? A union that went on to become a powerhouse industrial nation, whose citizens have enjoyed among the highest standards of living and the greatest freedoms of any on the planet?

>> Article I, Section 8, of the Constitution explicitly delegates to Congress authority "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

>> While it is true that copyright and patent are constitutional, this does not make these laws just.

I don't see it.

Is that statement saying that (a) Congress can create any monopoly for any limited time period NO MATTER HOW MUCH such actions might hurt progress, OR is that statement saying that (b) Congress can create any monopoly for any limited time period SO LONG AS these promote the progress?

The first interpretation sounds very unreasonable for something we would find in the Constitution or even as an interpretation of the English sentence. The second is reasonable and is consistent with much of the rest of what the Constitution is trying to accomplish.

The only way to make these two equal under all cases is if it were true that monopolies for any time period always promote. Does anyone believe that? In fact, mathematics and many other things would fall under those scenarios.

Invent vs. discovery: well honestly, everything is discovered. Everything that exists and has behavior has so because of laws of nature. We merely discover these combinations.

Patent law is out of hand because those pushing it insist on ignoring that little question of, is progress promoted? It's much easier to dance around that question, if you support patents, when evidence and common sense points to openness and sharing as the fastest way to grow. Does anyone think that *not sharing* is the way to growth? Was anyone here denied light and interaction with the world from the moment they were born until they had that EUREKA moment? If we did not share and spread information, we'd still be living in caves or worse. All "inventions" require a tremendous amount of insight that the author of the "invention" never conceives of except by borrowing it from the rest of society.

Does anyone want to make a fool of themselves and doubt this in public? Perhaps this is why those pushing for liberal patenting as the norm like to dance a lot.

Alright, now I am calm... Will someone supporting patents (or not) explain why they think what I just stated is "obviously" flawed? Alternatively, feel free to agree with me that the granting of monopolies is not Constitutional if progress is not promoted. Maybe you can then try to argue that some particular patent or other does promote the progress.

>> Invent vs. discovery: well honestly, everything is discovered. Everything that exists and has behavior has so because of laws of nature. We merely discover these combinations.

It was a mistake to have stated that. I looked up a quick contrast of these two terms and wrote that line above in haste, but I shouldn't have done so for there is an intention behind the word "invent" that we can relate to in general.

A different definition that what I looked at before states the following: "If you invent something such as a machine or process, you are the first person to think of it or make it."

Also, I was emotional when I said:
>> Does anyone want to make a fool of themselves and doubt this in public? Perhaps this is why those pushing for liberal patenting as the norm like to dance a lot.

I welcome brave souls to attempt this feat, for I recognize they might just pull it off and incur much wealth and respect upon themselves for doing so.

Jose_X, you're missing the point. The constitution doesn't even empower congress to grant monopolies for a day. It empowers the securing of an individual's exclusive right, e.g. the author's natural right to exclude others from their writings (which should be limited to the author's natural lifespan).

The power to grant literary monopolies was going to be added to the constitution (but was decided against).

Yes the Con stitution doesn't mention patents and copyrights per se; here is the "progress clause":

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

Notice the "limited Times" language. Natural rights don't come with an expiration date, so this was a wake up call to Congress to pass laws granting patent and copyright monopoly-crookopolies, which is exactly what happened.
The original 13 states (except Delaware in the case of copyright, if my memory is correct) also passed them.
And Crosbie, as you well know, the UK has no Con stitution, and still has IP laws, that grant IP monopolies for limited terms. What a con!

Nobody,

The union, i.e. the government, didn't become a powerhouse of anything, excapet theft, destruction and war. Production happens in the private sector, i.e. business, whereas the State just steals, monopolizes activities that should be performed by businesses, and kills.
Government is a parasite; the private sector is a producer and a host for the crime sector known as the government.

Are you really arguing that the American people would have prospered as much, or attained as much security and even freedom, without the union to keep the peace and safeguard those things?

A more plausible scenario is that it would have been like the Wild West everywhere -- violent and generally unsafe to invest in anything -- until the 20th century, then like the Roaring 20s everywhere until sometime in the 40s, and then law and order would finally have been imposed by goosestepping jackbooted thugs with swastika armbands, or maybe by Imperial Japan.

Oops.

Not quite the anarchists' paradise you had in mind, eh?

Regardless of whether you think private policing would somehow avoid the obvious pitfalls and prove somehow to be superior to the public variety, surely you must realize that one thing government is demonstrably good for is defending its citizens against other governments, takeovers by some of which would indisputably make things worse.

Bill, natural rights DO come with an expiration date - the end of a mortal lifespan.

Dead people (and other non-people such as corporations) do not have natural rights.

The fact that various states had enacted forms of copyright (a la Statute of Anne) prior to the constitution is irrelevant. The Constitution of 1787 wipes the slate and cannot recognise any state's extant legislation.

Remember, copyright is a privilege, whether granted by queen Anne, or corrupt legislators after the constitution.

However, congress is not empowered by the constitution to grant such privileges. Nothing in the constitution empowers congress to grant copyright or patent.

It is precisely to further insinuate copyright as a natural right that its extension refers to the life of the author. That even this is not enough for a corporation is why it is extended further.

The duration of a monopoly (privilege) is nothing to do with the duration of a right. A natural right is always tied to the duration of a natural being (or beings). The monopoly can be granted for a day, a year, or a century - it's span is tied to the duration of the legislature (until the next revolution).

As for goose steppers and swastikas, Hitler couldn't even win the Battle of Britan and sealed Germany's loss in WW II by repeating the Little Napster's mistake of invading mother Russia. Moscow was his Waterloo.
Uncle Sam didn't need to get involved. Ditto for the Rising (and losing) Sun.

Crosbie,

People can pass property to others after their death via wills, trusts and such. The point is that property doesn't have an arbitrary, government-imposed lifespan, the way intellectual monopolies do. Intellectual monopolies are inconsistent with natural rights, but so is the Con stitution. See Lysander Spooner on this.

Crosbie, regardless of your confusing comment about acts not being the wills of corpses, the fact remains, as Stepp said, that people have the right to designate their heirs by a testament or will.

THe fact also remains that the Constitution does in fact authorize Congress to enact the copyright and patent laws. It is inexplicable to me that you think it doesn't. The language is right there--Congress is given the power to secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries." That is copyright and patent. It's unjust, but it ain't unconstitutional. What kind of law do you think this is supposed to be authorizing, if not copyright and patent?

None of the nasty things that you have said or implied about me are at all true.

As for whether Hitler would have won without the Allies or not, perhaps he would eventually have fallen, but after doing how much damage elsewhere in the world?

Consider that without the union you so despise, some other government would have been the first to have the A-bomb. Your anarchists' paradise, ignoring for now how implausible and utopian such an idea is, would not have lasted long before it became so much radioactive dust in the upper atmosphere. No U.S. nuclear deterrent -- no restraint on whoever else got the bomb first.

Consider that in our history, the U.S. had the bomb first -- and used it. With restraint, mind you. Restraint Nazi Germany would not have had, nor Imperial Japan, nor anyone else that might plausibly otherwise have been the first.

Go back in time and assassinate Lincoln, or back even farther and sabotage the creation of the union, and the alternate-history America won't be some sort of anarchists' paradise; at best it will be a hellhole of unregulated rapists, murderers, and thieves, and if by 1940 it miraculously hasn't been conquered by one expansionist power or another and ended up under despotic rule, then it will probably go up in a mushroom cloud by 1950.

Well, unless of course you can furnish some kind of actual evidence to support all three on-their-face-implausible contentions that you, and others on this site, have implied by endorsing anarchy:

1. An anarchy will somehow evade devolving into some unpleasant form of defacto mob rule resembling the worst inner-city slums in which a large poor class are neglected by, when not the playthings of, a few rich dudes that own everything;

2. It also will avoid the instability seemingly inherent in anarchy, that some will gain influence (generally by becoming wealthy), others will follow whatever self-proclaimed leaders seem most capable of protecting and providing for them, and then a defacto government will arise; and

3. Despite its by-definition disorganized nature, it will somehow manage to avoid being conquered by a foreign power, and it will somehow manage to avoid losing the nuclear arms race, and other arms races, and then getting blown up, gassed, or infected by some foreign power.

In my own estimation, the best chance of avoiding fate 3 is to be such a Somalia-like hellhole that it's as expensive and unprofitable to occupy long-term as Iraq is proving to be and it just isn't worth anyone's time and effort to nuke. If somehow it managed to avoid that pitfall, and pitfall #2, and became a land of prosperous and well-off people by some miracle, it would be viewed with envy and viewed as a threat pretty much assuring fate #3, against which it would by definition have no defense.

Particularly there's an issue with immigration. A true anarchy can't very well have an immigration policy, so anyone would be free to enter it and try to make a go of it there. Assuming it somehow avoided becoming a hellhole to begin with, and instead became a prosperous land of opportunity, the desperate and destitute of the whole world would pour in and it would turn into a hellhole anyway. And if, by some miracle, it didn't, despotic regimes around the world would increasingly view it as an economic threat, both from its productivity and their own population starting to defect to it en masse, and would not suffer it to live.

And to top it off, in all practicality, I doubt anarchy is workable until we have the nanotechnology to banish scarcity of most material goods (except those requiring rare elements) and have a cheap green source of power (nuclear fusion?). That gets rid of the weight-of-poverty problem and many of the reasons for having a government to referee economic activities. With basic necessities non-scarce, the stakes are lower reducing the need for such refereeing. On the other hand, anarchists with nanotechnology and fusion power can't possibly last long before some nut releases some superbug that eats the planet, so...

Honestly, it just isn't workable without not only cheap green power and some way to make virtually unlimited amounts of food, shelter, and clean drinking water for free, but fundamental changes in human nature itself as well. You'd need to eradicate (not just ban, but actually eradicate) all forms of religious nuttery (especially of the more apocalyptic bent), cure all species of mental illness known to man, and a bunch of other things, and furthermore you'd have to FORCE these cures on the populace, which is hardly compatible with the freedoms you aspire for everyone to have!

"In a perfect world", maybe, but in a perfect world we wouldn't even be having this discussion in the first place. Here in the real one, anarchy sows the seeds of its own destruction; it's unstable even if not threatened by outside forces, and until its inevitable collapse it's only paradisiacal for the rich.

Stephan, my point is that live human beings have rights, but corpses do not. Bill was suggesting that a will demonstrates that human beings have natural rights beyond the grave. They do not.

The securing of an individual's (natural) exclusive right, is to protect the individual's natural ability to prevent anyone accessing or copying that which is exclusive to them, i.e. to remedy IP theft as much as to remedy any material theft.

Power to grant monopolies (in literary works, etc.) was proposed to be added to the constitution, but was not. But as we know, the monopolies of copyright and patent (covering published works) were granted anyway.

"Stephan, my point is that live human beings have rights, but corpses do not. Bill was suggesting that a will demonstrates that human beings have natural rights beyond the grave. They do not."

Crosbie, I neither said nor implied any such thing.

This is what I wrote:

"People can pass property to others after their death via wills, trusts and such."
Obviously Jones (or his lawyer) can only draft his will when he is alive, and he has to sign it. He can't do that from the grave. Your interpretation of my point is daft.

Bill, I'm glad we've cleared that up. Many apologies for my inference that you were suggesting natural rights weren't limited by the individual's mortal lifespan.

Copyright is the suspension of the individual's natural right to copy. Such a suspension can be extended at the pleasure of the legislator - permanently if they fancy, and being transferable, certainly irrespective of any mortal's lifespan.

Of course, as we know, a legal suspension of a fundamentally harmless (if not culturally productive) act that comes naturally to people, is not only unethical, but doomed to be struck off the statute books - unless law is to represent the protection of privileges bought by corporations rather than the rights the people were born with.

Actually, I have, back when we used to have real discussions in the comments and not just an endless parade of Beeswax and Lonnie cursing each other and random other folks saying "Great post! I really love this blog random words that may be a link".

That was a response to a completely off-topic comment that someone else posted. As for why the comment was posted so long after the original blog post, you'd have to ask the author of that off-topic comment that. I responded to the off-topic comment within a few hours or days.

Copyright is the suspension of the individual's natural right to copy. Such a suspension can be extended at the pleasure of the legislator - permanently if they fancy, and being transferable, certainly irrespective of any mortal's lifespan.